By Alex M. Couto
Engel, in his book The Myth of the Litigious Society: Why We Don’t Sue, points out a fascinating concept. The idea that Americans are overly litigious seemed anchored to fact and reality, but as he points out, this is far from the truth. The majority of Americans who have potential claims never actually bring them. This prompts us to ask why; there must be some reason for this. But as Engel points out, the reason is not easily identifiable. Like many things in this world, especially with respect to the law and legal system, things are not so black and white.
Reading the book, Engel points out that “lumping” is far more common than bringing forth a claim. Our societal preconceptions would have us believe otherwise. What is particularly interesting is Engel’s explanation of the injury victim. The injury victim experiences and responds to the injury not just mentally, but with the whole body. The injury sustained and the subsequent ways to address the problem are not solely done with the mind, but with the body as a whole. Engel points out that there is a sort of “mystical figure” or idea that victims suffer their injury and address the problem objectively, but according to Engel, this is far from the truth. The individual’s body and mind together are injured, the holistic pain deprives the brain from an objective, calculated means of redress. But it can be brought one step further, the body, mind, and our environment all contribute to whether someone brings the claim or lumps.
Engel brings up how environmental factors greatly affect whether an individual lumps. He addresses the importance of philosophy and religion. I believe this to be of particular importance. When an individual gets injured, if they cannot clearly discern who caused the injury, they revert to self-blame. It is easy to imagine situations where even the tortfeasor being identified still will not be held liable by the injured person. Self-blame goes hand in hand with religion. Most people, when they suffer, they just want to get better. And when there is no concrete knowledge of a bad actor in their eyes, they blame themselves, and often turn to self-reliance and religion to console their misfortune. Coming from a Roman Catholic background, I have experienced this first hand. Engel points out the situation when someone believes that they have sinned, they take on the blame, or moral guilt. Personally, when I think I have done something less than admirable I feel guilty and admittedly, think that I deserve some sort of punishment. So, it is easy to see how, when someone gets injured, they correlate their injury to divine retribution. Engel cites Dan Coates and Steven Penrod in chapter six, who speculate that “victims who blame themselves ‘may be motivated by the human need to maintain perceived control,’ since self-blame allows them to feel that the cause of some negative outcome can be directly manipulated by us” (p. 90). This is where “foxhole praying” comes in: the religious victim of tortious conduct will plead with the divine to get better, that if God will allow them to get better they will be a better person, sin less, and continue with their life. When time elapses, the victim may get better, correlating this improvement to divine intervention one way or another. This individual will be happy to experience improvement, and will want to put their hardships and “sin” behind them, making it less likely for them to invoke the past and bring forth the claim. There is a saying, that there are those who want power, and there are those who just want to be left alone. Most people just want to be left alone.
This leads to the idea that lumping has a lot to do with the individual, who they are, where they are, and what their family is. Naturally there are exceptions. But there is a strong argument that where the person lives, the surrounding culture, their personal beliefs, and the belief of their family and ancestors all contribute to whether someone will lump. Engel brings up his own research about belief systems and causal attribution. Engel gives an example about the “cosmologies of cause and effect” explaining how a farmer in Thailand named Thipha got into a serious accident while on a motorcycle. Thipha rationalized the accident in terms of karma, and how bad deeds cause suffering. She believes that when she tilled the soil of her farm she unwittingly harmed tiny creatures that lived in it, which in her eyes was a bad deed that caused suffering. This karmic explanation was based on Buddhist philosophy of cause and effect (p. 94).
I believe that an individual’s environment and in turn, their culture has a profound effect on their decision whether to sue or not. Americans are one of the more litigious societies, relatively speaking. So, what is it about our American culture that makes this so? Engel briefly talks about individualism. Rugged individualism is an American centerpiece. Self-determination and self-reliance are as American as apple pie. The idea of American exceptionalism plays largely to this. Americans are hesitant to accept assistance from others. They are seemingly more likely to endure their hardships and get through it, perseverance is a trait that our society values. The American dream itself can be said to embody this, an immigrant begins with nothing, but fights hard and beats the odds and comes out successful in the end. This could be one reason why we do not sue. However, I think there is something deeper at play.
Religion can be found in every society. Certain societies are more religious than others. As society develops and modernizes, our knowledge expands, and our reliance on religion starts to diminish. The United States has been at the forefront of the industrial revolution, it has developed and modernized at levels unparalleled, the U.S. is the epitome of modernization. Capitalism has a lot to do with it. Protestantism has a lot to do with it. Although I offer no research to advance my argument, I believe it to be fairly apparent that industrialization thrived in protestant countries, the U.S. and England as examples. I think this connection can also be transplanted to lumping. The more sophisticated our society, the less we utilize religion. Church attendance numbers are very low, I know this is the case in Roman Catholicism and it likely applies to other sects of Christianity and other religions as well. The more industrialized and modernized your environment, the more likely you are to be educated. The more educated you are the better chance you can discern the true reason for your injury. The increasing absence of religion is a product of this modernization, the expansion of science changes our subjective perceptions of causation. This may be another explanation to why we are more litigious than other peoples, even if it may be only marginally so. Nevertheless, the vast majority of injured persons never bring claims, because humans are creatures of comfort. Religion and humanity are two sides of the same coin and it is highly unlikely we will ever have one without the other. Religion and belief systems are hardwired in our minds, it is one of humanity’s first inventions and it follows us wherever we go. Industrialization and modernization is more recent, religion and industrialization will increasingly mesh and intertwine but ultimately religion/belief systems and their resulting philosophies are a permanent fixture in our subconscious and will one way or another play a role in our decision-making process, whether we like it or not. If the individual does not subscribe to a certain belief system it is likely that the environment will.
Before reading Engel’s book these concepts mentioned were always known to me just not to this extent. They were in the background, with no one theory sticking out more than another. Lumping is the natural human default because religion and self-reliance are also natural human defaults.
I think bringing change to the U.S. tort system is far more difficult than initially imagined. There are deep societal constructs that have been in place for so long, and the phenomenon of lumping can be interpreted as a byproduct of it. Potential ways to address the issue could be a system of compulsory notification. Any person that has reason to believe they have been injured by tortious conduct must report it to a governing body. From there a third party will review the circumstances and counsel the potentially injured party. A compulsory system of tort reporting could be useful because it would keep on record the different happenings that may be material to a lawsuit, and the government would then act on behalf of the injured party. This could take a lot of human error out of the equation. But that in itself could be a daunting task. It seems there is no clear and easy way to fix the problem. Tort reform in regards to lumping would seemingly require an overhaul of humanity.